U.S. v. Jerkins, 77 M.J. 225

Military Justice Personnel: Military Judge: Discretion

1. in this case, a military judge abused her discretion by admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand that appellant received for engaging in an inappropriate relationship with an enlisted woman, where the memo contained an explicit suggestion that appellant was not fit for continued service in the Army and where the memo was admitted into evidence without the normal due process required by Army regulations, namely without allowing for appellant’s exercise of his right to rebuttal; the commander’s opinion that appellant was unfit for continued military service was essentially a recommendation that he be dismissed from the service, and that opinion invaded the province of the members of the court-martial

Trial Stages: Sentence and Punishment: Evidence

1. the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness
2. in this case, a military judge abused her discretion by admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand that appellant received for engaging in an inappropriate relationship with an enlisted woman, where the memo contained an explicit suggestion that appellant was not fit for continued service in the Army and where the memo was admitted into evidence without the normal due process required by Army regulations, namely without allowing for appellant’s exercise of his right to rebuttal; the commander’s opinion that appellant was unfit for continued military service was essentially a recommendation that he be dismissed from the service, and that opinion invaded the province of the members of the court-martial

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF is particularly vigilant where an attempt to unlawfully influence the results of the court-martial involves an accused’s commanding officer

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the standard for determining prejudice in cases in which the military judge has abused her discretion by admitting or excluding sentencing evidence appears to be linked to whether the evidence has constitutional implications; the harmless error standard is applied for nonconstitutional issues and the appellate court must determine whether the excluded evidence may have substantially influenced the adjudged sentence; for constitutional issues, the harmless beyond a reasonable doubt standard is applied
2. before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; to conclude that such an error is harmless beyond a reasonable doubt, the court must be convinced that the error did not contribute to the sentence
3. in this case, the government failed to establish that the error in admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand indicating that appellant was unfit for further service was harmless, let alone harmless beyond a reasonable doubt, where appellant had served in the Army for nineteen years, volunteered to deploy to a combat zone in the Middle East, was awarded the General Douglas MacArthur Leadership Award for his outstanding care for wounded warriors, was pending a medical evaluation board for injuries sustained during combat in Iraq, and was not afforded the full opportunity to submit a rebuttal to the reprimand, and where this case was tried before members and the military judge admitted the reprimand over the defense’s MRE 403 objection without providing any real explanation of her ruling on the record

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect
2. an appellate court review questions of unlawful influence de novo
3. the standard for determining prejudice in cases in which the military judge has abused her discretion by admitting or excluding sentencing evidence appears to be linked to whether the evidence has constitutional implications; the harmless error standard is applied for nonconstitutional issues and the appellate court must determine whether the excluded evidence may have substantially influenced the adjudged sentence; for constitutional issues, the harmless beyond a reasonable doubt standard is applied
4. in this case, application of the harmless beyond a reasonable doubt standard is consistent with the position that unlawfully influencing a court-martial raises constitutional due process concerns where it undermines an accused’s right to a fair trial
5. before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; to conclude that such an error is harmless beyond a reasonable doubt, the court must be convinced that the error did not contribute to the sentence

Miscellaneous Matters: Command Influence: Generally

1. no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial in reaching the findings or sentence in any case
2. in this case, application of the harmless beyond a reasonable doubt standard is consistent with the position that unlawfully influencing a court-martial raises constitutional due process concerns where it undermines an accused’s right to a fair trial